Labor: How much information can an employer request in a doctor’s note?

In 2008, the Equal Employment Opportunity Commission (EEOC) filed suit against Dillard’s Inc., a national retail chain, in the United States District Court for the District of California. (EEOC v. Dillard's, Inc., et al.). The suit was filed on behalf of a class of former employees who were purportedly required to disclose the exact nature of their medical conditions before Dillard’s would approve the leave as sick leave. On Dec. 18, 2012, the EEOC and Dillard’s settled the matter for a disclosed amount of $2 million. The settlement also resolved claims that Dillard's terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed, in violation of the Americans with Disabilities Act (ADA).

According to the EEOC, “while the class members had verifications from doctors to assure Dillard's that the absences were due to medical reasons many did not feel comfortable disclosing the specifics of their conditions to the company.” The EEOC alleged the former employees were fired in retaliation for their refusal to provide details of their medical conditions, notwithstanding the fact that many of their own doctors advised them not to disclose specific medical information in accordance with the law.

In its court-filed documents, the EEOC argued that Dillard’s policy violated the ADA, which prohibits employers from making inquiries into the disabilities of their employees unless job-related and necessary to conduct of business. The District Court ruled that Dillard's medical disclosure policy was facially discriminatory under the ADA. Additionally, the EEOC claimed that Dillard’s enforced a maximum-leave policy limiting the amount of health-related leave an employee could take and, in practice, did not regularly engage in an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation of the employee's disability.

Among other questions, this case raises the issue of how much information an employer can request in notes from their employees’ medical professionals prior to approving an absence for sick leave. For example, can the employer require the note to contain a specific diagnosis?

Basically, the employer needs to avoid putting itself in the role of medical provider. Instead, the employer should request only as much information as it can, and will, legally use. For instance, what will the employer do with diagnosis information? In all reality, the answer to that question is nothing. The employer is not likely to challenge the diagnosis. Instead, all the employer needs to know is that the absence was for a medical reason. Of course, if the absence is long enough and serious enough to qualify for Family and Medical Leave Act protection, or the employer is requesting a reasonable accommodation under the ADA, the employer can require additional medical certification as set forth by those Acts (e.g. Does the employee have a serious health condition? Does the employee have a disability? What type of reasonable accommodation is required? Etc.) Prior to that time, the employer has no legitimate need to know the diagnosis for the simple approval of sick leave. Accordingly, for the simple approval of sick leave, a general physician’s note should suffice.

Contributing Author

Tina M. Maiolo

A member of Carr Maloney, P.C., Tina Maiolo partners with clients to operate and grow their businesses. She focuses her legal practice in...